The Law @ Work

As the Holidays Approach, EEOC Issues Resource Document on Rights of Employees and Applicants with Mental Health Conditions

by Amelia J. Holstrom

Millions of Americans suffer from mental health disorders. According to the National Alliance on Mental Illness, 18.5% of the adult population of the United States suffers from mental illness each year.   These illnesses include conditions such as anxiety, depression, Post Traumatic Stress Disorder (PTSD), and bipolar disorder.

The Americans with Disabilities Act and Massachusetts law prohibit employers from discriminating against an employee on the basis of his disability.  Under the laws, an employer must make reasonable accommodations if those accommodations will allow an employee with a disability to perform the essential functions of their job, unless doing so would be an undue hardship for the company.  The undue hardship standard is very high.  Mental illnesses qualify as disabilities under both the state and federal law.

Although employers address requests for reasonable accommodations for disabilities, including those for mental illnesses, all year, employers may see an increase in requests with the holidays approaching.  Many people experience increased stress and anxiety during the holidays, but those who already live with a mental health condition are particularly susceptible to such seasonal increases in anxiety and depression.

On December 12, 2016,  the Equal Employment Opportunity Commission (EEOC) released a new resource document entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.  Although the document is directed toward employees suffering from mental health conditions, it may also be helpful to employers trying to navigate requests for accommodation or otherwise addressing mental health concerns in the workplace.  The materials address several major areas and questions, such as what to do if an employee’s mental health condition affects work performance, how to request a reasonable accommodation, and what employees should do if they think their rights have been violated.  Here’s some additional information that may help employers faced with employee mental health issues:

When can an employer request medical information regarding an employee’s condition?

Employers are limited as to when they may request specific information about any employee’s condition, but employers may do so, and should do so, when assessing an employee’s request for a reasonable accommodation. Additionally, if there is objective evidence that someone is unable to perform his job or that he may post a safety risk because of his condition, the employer is entitled to request medical documentation regarding the condition.

How are reasonable accommodations requested and assessed?

Some employers have written policies regarding reasonable accommodation requests.  Whether your company has such a policy or not, all employers should listen to what their employees are asking them for, whether it be verbally or through an informal or formal writing.   Employees may ask for an accommodation at any time, which is why it is important that managers understand what to listen for and report any request to human resources or the appropriate department or person at your company.

Once an employer receives an accommodation request, it may, and should, request medical documentation supporting the need for the requested accommodation from the employee.  If the employer has suggested accommodations, the employer may ask if those suggested accommodations would enable the employee to perform his job as well.

After receiving the documentation, the employer must determine whether it can grant the employee’s request or if there is another accommodation that would enable the employee to perform the essential functions of the position.  If there are two or more possible accommodations, the employer may choose which one to give the employee.  An employer may only decline to provide a reasonable accommodation altogether if all possible accommodations would cause an undue hardship in the form of significant difficulty or expense for the employer.  The burden is on the employer to show significant difficulty or expense, and, as mentioned before, the standard is very high.

When might a leave of absence be appropriate?

While the goal is to provide employees with reasonable accommodations that allow them to work and perform the functions of their job, sometimes that is just not possible.  In those situations, it might be appropriate to offer an employee a block leave of absence as a reasonable accommodation.  Again, employers are entitled to request medical documentation supporting the need for leave and a date certain by which the employee can return.  With that information, the employer can assess whether it can grant the block leave of absence or if it would pose an undue hardship.

Disability discrimination cases are on the rise.  In 2016, the EEOC resolved almost 5,000 charges of discrimination related to mental health disabilities alone, totaling more than $20 million. Therefore, employers should be careful when assessing requests for accommodations and should consult with employment counsel as appropriate.

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